Q&A: Legal issues in NYPD Muslim spying program

Monday

Mar 12, 2012 at 8:26 AM

MATT APUZZO

NEW YORK - A secret New York Police Department program to spy on Muslim businesses, infiltrate mosques and monitor Muslim students on college campuses has ignited a debate over how to strike a balance between civil liberties and national security. The NYPD has vigorously defended the tactics, calling them legal and necessary.

Here's a look, in question-and-answer format, of the key legal and policy issues at play.

Q: What does it mean that police were "spying?"

A: Since the terrorist attacks of Sept. 11, 2001, the NYPD has become one of the nation's most aggressive domestic intelligence agencies. A secret squad known as the Demographics Unit deployed plainclothes officers, typically of Arab descent, into Muslim neighborhoods to photograph mosques and catalog everywhere Muslims congregate, including restaurants, grocery stores, Internet cafes and travel agencies. The officers eavesdropped inside businesses and filed daily reports on the ethnicity of the owner and clientele and what they overheard. The program was not based on allegations of criminal activity and did not stop at the city line.

Police also infiltrated Muslim student organizations and monitored the websites of Muslim student groups. Officers included names of students and professors in police files, even when there were no allegations of criminal wrongdoing. Some of the city's Muslim allies, those who stood beside Mayor Michael Bloomberg and decried terrorism, were being monitored by the NYPD.

Police kept files on Muslims in New York who changed their names to names that sounded more typically American. Similarly, anyone who took on a new, Arabic-sounding name was catalogued.

At mosques, police recorded license plates and took photos and videos of worshippers as they arrived for services. Informants and undercover officers helped police build files on even innocuous sermons.

Q: So some of this information was publicly available?

A: Yes, and city officials have dismissed criticism of these programs by focusing on those activities, like monitoring public websites or photographing businesses, that involve little more than gathering public information.

Bloomberg and his aides have not addressed, however, why police kept intelligence files on innocuous mosque sermons and plans for peaceful protests. They've not explained why police noted which restaurants served "devout" Muslims, why police maintained lists of Muslims who changed their names or why innocent people attending Friday prayer services were photographed and videotaped.

Those activities, many Muslims said, make them feel like they're under scrutiny just because of their religion.

Some of what was done, like monitoring public Internet sites or visiting businesses, was likely lawful, since police can go wherever the public can go. There are disagreements, however, about whether police can legally catalog innocent people in police files without some allegation of wrongdoing. The FBI, for instance, is prohibited from doing so.

These questions aren't likely to be settled anytime soon. The NYPD's tactics are regulated by a court order in a decades-old lawsuit over police spying on anti-war protesters and political groups during the 1960s and 1970s. Civil rights lawyers have asked a judge to look into these most recent police activities, but the legal process moves slowly.

Q: Is conducting surveillance based on religion and ethnicity racial profiling?

A: A 2004 New York City law prohibits racial profiling, which is defined as "the use of race, color, ethnicity, religion or national origin as the determinative factor for initiating police action." But the law is vague, with no definition for "determinative factor." And even if the NYPD's intelligence-gathering program were shown to violate that law, there's nothing in the law spelling out the consequences for violating it. In Congress, lawmakers have tried for years to pass a racial profiling law with strong wording that would make these programs unlawful. But in the wake of 9/11, politicians say there is little appetite for it and it has never passed.

Q: So this all might be legal. Then what's the controversy about?

A: Like many counterterrorism programs of the last decade, including waterboarding, secret CIA prisons, warrantless wiretapping and drone attacks, the revelations about the NYPD spying programs have prompted a vigorous debate about whether they are good policy, not just whether they are legal.

The NYPD surveillance has made many Muslims feel like suspects for attending services in mosques, participating in student groups or eating in restaurants in their neighborhoods.

"People are saying they are afraid to pray in mosques," said Newark, N.J., Mayor Cory Booker, whose city's Muslim neighborhoods were under NYPD surveillance. "They are afraid to eat in restaurants. A chill has been put on my community; the pain and the anguish is real."

The NYPD's programs also touch on one of the major questions in counterterrorism: How can authorities fight terrorism without ostracizing entire neighborhoods and reinforcing the notion that America is at war with Islam, a belief that al-Qaida has promoted in its recruiting.

New York leaders say they have built strong, successful programs to reach out into Muslim neighborhoods

Q: Who reviews these programs with an eye for that sort of thing?

A: The NYPD says it has a vigorous internal review policy and says its cases are reviewed by veteran lawyers. Outside the department, however, its intelligence division operates with little oversight. The primary oversight body, the New York City Council, is not told about these secret programs and does not review or audit them. It's also unclear to what degree Mayor Michael Bloomberg is told about them, though he has defended them.

The Obama administration, which has made Muslim outreach a key part of its national security strategy, has tacitly endorsed the programs but does not review them. The Department of Homeland Security, which spends hundreds of millions of dollars year on the NYPD, says it doesn't know what that money is being used for and does not review the intelligence-gathering programs. Nor does Congress, which authorizes the money.

And the White House, which through its drug czar has helped pay for the cars and computer systems used in the spying programs, says it has no say over how the money is used.

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